Sawtooth Village Legal Easement DocumentAfter recording return to:
The Law Offices of Ma bion, PLLC
P.O. Box 1084
Caldwell Idaho 83606
ADA COUNTY RECORDER Christopher D. Rich 2417.031400
BOISE IDAHO Pgs=27 VICTORIA BAILEY 04/1212017 90:28 AM
LAW OFFICES OF MAYBON PLLC ANIOUNT388.00
III1lI! 11111 {� 111111III1II II11111111II11111111 III
00349670201700314000270272
DECLARATION OF
COVENANTS, EASEMENTS AND RESTRICTIONS
.FOR
MCLINDER SUBDIVISION NO.2
THIS DECLARATION OF COVENNTS, EASEMENTS, AND RESTRICTIONS
("declaration") is made effective as of the day of �, 2017, by T S DEVELOPMENT
L.L.C., an Idaho limited liability company ("declarant").
SECTION 1 - PRELIMINARY
1.1 Purpose. As of the date of recordation of this declaration, declarant is the owner of
the shopping center, located in Ada County, State of Idaho, more particularly described on Exhibit
"A" attached hereto and by this reference incorporated into this declaration. Declarant desires to
develop the shopping center as an integrated retail and neighborhood commercial shopping center
facility for the mutual benefit of all the property in the shopping center and to protect the value,
desirability, and attractiveness of the shopping center for the benefit of the declarant and each
owner.
1.2 Affect on Shopping Center. Declarant hereby declares that the shopping center,
and each parcel and portion thereof, is and shall be held, sold conveyed, encumbered,
hypothecated, leased, used, occupied and improved subject to the terms, covenants, easements,
and restrictions contained in this declaration and all of the foregoing are declared and agreed to
be in furtherance of a general plan for the protection, maintenance, subdivision, improvement and
sale of the shopping center, and to enhance the value, desirability and attractiveness of the
shopping center. The terms, covenants easements, and restrictions set forth herein shall be
appurtenant to and run with the land constituting the shopping center (and any portion thereof),
and with each estate therein, and shall be binding upon any person having or acquiring any right,
title or interest in any parcel or portion thereof: and shall inure to the benefit of and be appurtenant
to every parcel or portion thereof.
1.3 Affect of Shared Maintenance Agreement. The terms, covenants, easements,
restrictions, obligations and provisions of this declaration are in addition to those set forth in the
DECLARATION OF COVENANTS, EASEMENTS, AND
RESTRICTIONS FOR MCLINDER SUBDIVISION NO.2
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shared maintenance agreement and each owner covenants and agrees to comply with the
obligations set forth within the shared maintenance agreement.
1.4 Definitions.
1.4.1 "adjacent parcer': That certain property located adjacent to the boundary
of the stropping center, and more particularly described in Exhibit "B" attached hereto and any
additional property located adjacent thereto which may be acquired by declarant from time to
time. Adjacent parcel shall mean the real property described in Exhibit B. including each lot,
parcel, and portion thereof and interest therein, including all water rights associated with or
appurtenant to such property, which are brought within the jurisdiction hereof by Supplemental
Declaration or otherwise.
1.4.2 "adjacent parcel owners)": The record holder of fee simple title to the
adjacent parcel (or any portion thereof), its heirs, personal representatives, successors and assigns.
1.4.3 "affiliate": With respect to any person: (a) any person directly or indirectly
controlling, controlled by or under common control with such person; (b) any person owning or
controlling ten percent (10%) or more of the outstanding voting interests of such person; or. (c)
any officer, director, manager, member or general partner of such person.
1..4.4 "building": Any permanently enclosed structure placed, constructed or
located within the building area on a parcel.
1.4.5 "building area': All those areas on each parcel shown as "Permissible
Building Area" or "Building Area" on the site plan and within which a building may be placed,
constructed or located.
1.4.6 "claims": All causes of action, claims, Iiabilities, losses, damages, costs
and expenses (including reasonable attorneys' fees and court costs) arising under this declaration,
including without limitation all costs and expenses of enforcing any indemnification, defense or
hold harmless obligations.
1.4.7 "common area": All those areas on each parcel which are not from time to
time covered by a building or which cannot under the terms of this declaration be used for a
building, provided that servicefacilities, drive-through facilities, and canopies which extend over
the common area, together with any columns or posts supporting same, shall be deemed to be part
of the building they are attached to and shall not be deemed to be common area.
1.4.8 "common area improvements": All improvements constructed on the
common area of each parcel, including but not limited to parking lot improvements, drive aisles,
parking lot lighting, landscaping, irrigation systems, sidewalks, bicycle racks, architectural
amenities (such as fountains or sculptures), parcel sign, project sign, directional signs and other
similar .improvements.
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RESTRICTIONS FOR MCLINDER SUBDIVISION NO, 2
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1.4.9 "consenting owners)": The consenting ownerf.$) shall be: (i) the
declarant, for so long as the declarant (or its affiliates) is the owner of any parcel within the
shopping center or the owner of any portion of the adjacent parcel; and (ii) from and after the
date of declarant no longer owns any portion of the shopping center or the adjacent parcel, the
owner(s) of the two parcels) in the shopping center which contain the largest square footage of
land area.
1.4.10 "declarant": TS Development, L.L.G., an Idaho limited liability company,
together with: (i) any afjiliate(s) of declarant; and (ii) any successors and assigns of declarant if
the rights and obligations of declarant under this declaration are expressly assigned to such
successors and assigns by TS Development, L.I..C, pursuant to a recorded instrument.
1.4.11 "default interest": The lesser of: (i) four percent (4%) over the Prime Rate
as stated in the Wall Street Journal, Western Edition; and (ii) the highest lawful rate.
1.4.12 "drive": The drive aisle and acces points located on the shopping center
parcels and adjacent parcel in the shown on the site plan.
1.4.13 `drive-through facilities": Vehicular drive -up or drive-through customer
service facilities located directly adjacent to or in close proximity to a building (as, for example,
at a drug store, restaurant, or bank).
1.4.14 "easement": The easement recorded in Ada County, Idaho, on September
15, 2014, and identified by Instrument Number: 2014-475146.
1.4.15 `floor area": The total number of square feet of floor area contained within
a building whether or not actually occupied, excluding service facilities, outdoor seating areas,
any mezzanine area or basement area used solely for the storage of merchandise and trade fixtures
or for administrative purposes. Floor area shall be measured from the exterior line of such
building.
1.4.16 `governmental regulations": Any and all laws, statutes, ordinances,
codes, decrees, rulings, regulations, writs, injunctions, orders, riles or conditions of approval or
authorization of any governmental entity, agency or political subdivision whether now in force or
which may hereafter be in force.
1.4.17 "land area": The total square feet of land area contained within a parcel as
shown by the recorded plat or lot line adjustment for such parcel.
1.4.18 "lienholder": Any mortgagee under a mortgage or a trustee or beneficiary
under a deed of trust constituting a lien on any parcel.
1.4.19 "limited food service": Any operation or business which (a) prepares or
serves food or beverages for either on-site or off-site consumption, such as coffee, juice, donuts,
bagels, ice cream, yogurt, sandwiches, pizza or similar operation and (b) occupies less than 2,000
square feet of floor area.
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1.4.20 "maintenance director": The maintenance director is the person or entity
appointed maintenance director in accordance to the tenor of the shared maintenance agreement.
1.4.21 "majority": majority shall mean one more than '/z of the total number of
votes to be counted. Further, majority must include declarant for so long as declarant remains a
consenting owner
1.4.22 "occupant": Any owner or person from time to time entitled to the use of
and occupancy of any portion of a parcel under a lease, sublease, assignment, license, concession
or similar occupancy agreement.
1.4.23 "outdoor seating areas": Any areas within the common area on a parcel
which are: (i) located directly adjacent to or in close proximity to a building; and (ii) used, from
time to time, as outdoor seating areas in connection with a restaurant or limited food service
operated by the occupant of such building. The outdoor seating areas are subject to the
requirements set forth in this declaration.
1.4.24 "owner": The record holder of fee simple title of a parcel (or any portion
thereof), its heirs, personal representatives, successors and assigns. If a parcel is owned by
multiple owners, the nouldple owners shall designate in writing the designated owner with the
sole right to act for and bind all of the multiple owners of such parcel, and the other owners may
rely on any consent, approval or decision made by the designated owner on behalf of the multiple
owners.
1.4.25 "parcel': Lots as shown on the site plan, provided that the adjacent parcel
is expressly excluded from the definition of parcel (unless and until all or an), portion of the
adjacent parcel is annexed into the shopping center by recordation of a supplement declaration
as provided in Section 9 below). As to any parcels owned by declarant, declarant, in its sole
discretion, may: (i) reconfigure the interior boundary lines of any parcel; (ii) combine one or more
parcels into a single parcel; and/or (iii) further subdivide any parcel (collectively, "parcel
adjustment"). upon recordation of a lot line adjustment, plat or similar map evidencing such
parcel adjustment, declarant shall record a supplemental declaration to evidence such parcel
adjustment and to attach a site plan for each parcel affected by the parcel adjustment, and
thereafter each of parcels affected by the parcel adjustment shall be deemed to be an individual
parcel in the stropping center for ail purposes of this declaration and the site plan attached to such
supplemental declaration shall be deemed to be the approved site plan for such parcel.
1.4.26 "Parcel sign": That certain freestanding monument or pylon sign for use by
each parcel.
1.4.27 "party" or "parties": The owners of the shopping center parels will
sometimes be referred to individually as "party" or collectively as "parties".
1.4.28 "permittees": The owners and occupants and their respective officers,
directors, employees, agents, contractors, customers, visitors, invitees, licensees and
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RESTRICTIONS FOR MCLINDER SUBDIVISION NO.2
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concessionaires, provided, however, that persons engaged in civic, public or political activities
within the shopping center shall not be considered permittees.
1.4.29 "person": Any individual, limited liability company, partnership, fine,
association, corporation, trust, government agency, administrative tribunal or any other form of
business or legal entity.
1.4.30 "project signs)": Certain freestanding monument or pylon sign(s) which
may be constructed for the use of the shopping center.
1.4.31 "restrictions": The easements, covenants, restrictions, and encumbrances
contained in this declaration.
1.4.32 "restaurant": Any operation or business which requires a governmental
permit, license and/or authorization to prepare or serve food far either on-site or off-site
consumption, provided that the following shall not be considered a restaurant: (i) a supermarket,
convenience store, grocery store or similar operation; or (iii) a limited food service operation.
1.4.33 "service facilities": The trash compactors and enclosures, exterior lighting
attached to a building, side yards and rear yards used for outdoor storage or storage containers,
loading docks, electrical facilities and transformers, truck ramps and other similar exclusive
service facilities and outward extensions, and customer pickup areas directly adjacent to or in close
proximity to a building, whether or not described, labeled or depicted on the site plan. The service
facilities are the exclusive property of the owner of the parcel on which such service facilities are
located and not part of the common area.
1.4.34 "shared maintenance agreement": The shared maintenance agreement
affecting the shopping center and adjacent parcel, as the same may be amended and supplemented
from time to time, recorded concurrently herewith, which provides for the maintenance of the
shared maintenance areas (as defined within the shared maintenance agreement) located within
the shopping center and the adjacent parcel.
1.4.35 "shopping center": The shopping center is located at the intersection of N.
Linder Road and W. McMillan Road in the City of Meridian, County of Ada, Idaho, and more
particularly described on Exhibit A attached hereto. Shopping center includes all legally
described property included in Exhibit A, including each lot, parcel, and portion thereof and
interest therein, including all water rights associated with or appurtenant to such property, which
are brought within the jurisdiction hereof by Supplemental Declaration or. otherwise. The
shopping center also may include, at Declarant's sole discretion, such additional property in
addition to that described in Exhibit A as may be annexed by means of Supplemental Declaration
as provided herein. The adjacent parcel is not a pari of the shopping center.
1.4.36 "site plan": The site plan for the shopping center attached hereto as Exhibit
C, as the same may be amended or supplemented as provided herein. The adjacentparcel is shown
on the site plan for the sole purpose of designating the location of the adjacent parcel.
DECLARATION OF COVENANTS, EASEMENTS, AND
RESTRICTIONS FOR MCLINDER SUBDIVISION NO.2
Page 5 0 '127
1.4.37 "supplemental declaration": A supplemental declaration which may be
recorded by declarant pursuant to Section 9.5 below.
1.4.38 "utility lines": Those facilities and systems for the transmissions of utility
services, including but not limited to storm water drainage, surface drainage, detention or retention
systems or structures, water mains, sewers, lift stations, pressurized irrigation system, water
sprinkler lines, telephone and television conduits and lines, electrical conduits or systems, gas
mains, and other public or private utilities. "common utility lines" means any utility line which
serves more than oneparcel or the adjacent parcel. and `:separate utility lines" means any utility
line which serves a single parcel at the point where it is stubbed to such parcel and breaks off and
separates from the main utility line.
SECTION 2 - BUILDING AND COMMON AREA DEVELOPMENT.
2.1. Buildings — Parcel. One or more of the buildings may be located on each parcel
provided that: (i) all buildings) on such parcel are located within the building area, as shown on
the site plan, provided that .service facilities, drive-through facilities, canopies, eaves and roof
overhangs (including columns or posts supporting same), normal foundations, utility cabinets and
meters, signs and doors for ingress and egress may project from such building into common area;
(ii) the total floor area of all building(s) on such parcel does not exceed: (A) the maximum floor
area designated by the consenting owners; provided, however, if a parcel adjustment is made by
declarant, then the declarant shall designate the building area and maximum floor area for such
parcel on the site plan attached to the recorded supplemental declaration; and (iii) parapet or other
screening walls shall be constructed on the rooftop of each building to screen all mechanical,
communication and similar equipment located in the roof from view within the shopping center
("parapet wall").
2.2. Building Height. The maximum building height for any building within the shopping
center shall not exceed the maximum height allowed by the government regulations in effect at
the time that an owner wishes to construct or modify a building.
2.3. Communications Equipment. Subject to governmental regulations and the
requirements of this declaration, an owner shall have the right to install, maintain, repair, replace
and remove communications equipment (defined below) on the top of the building in its parcel
provided: (i) the height of such communication equipment does not extend above the height limits
for such building; and (ii) the communications equipment is set back from the front of the
building and screened from view by the parapet wall or architectural feature. As used herein,
the term "communications equipment" means such things as satellite and microwave dishes,
antennas, laser heads, and similar equipment used far communication purposes for the sole benefit
of the occupant(v) conducting business in such building.
2.4. Buildings --- Desmon and General_ Requirements.
2.4.1. Each building in the shopping center, now and in the future, shall be of first
quality construction and architecturally designed so that its exterior elevations (including, without
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limitation, signs, color and trash enclosures) will be architecturally and aesthetically compatible
and harmonious with all other buildings in the stropping center.
2.4.2. No building may be constructed nor the exterior of any existing building
changed in any way (including, without limitation, signs and color) without the prior written
approval of the consenting owners. Before construction of any building or any modification of
an existing building is commenced, the owner of such parcel shall submit the following material
to the consenting owners for review and approval (collectively, "building plans"): (i) color
elevations of each fagade of the building (including, materials, colors and dimensions), including
the architectural features, parapet wall, and the screening or all communications equipment,
mechanical, and similar equipment behind the parapet wall; and (ii) site plan depicting the location
and floor area of the building, including an architectural floor plan; (iii) the location, dimensions
and screening for the service facilities; (iv) the location and dimensions of the outdoor seating
areas; and (v) the dimensions, design and location of the parcel sign and all exterior building
signs.
2.4.3. No consenting owner may arbitrarily or unreasonably withhold, condition,
or delay its approval of the building plans, or modification of the same, if the building plans are
architecturally and aesthetically compatible and harmonious with the architectural theme for the
shopping center. The consenting owner(v) must approve or disapprove the proposal within fifteen
(15) calendar days after receipt of the building plans, and, if the consenting owners) disapprove
the building plans, it shall provide a written explanation in reasonable detail of its reasons for
disapproval and under what conditions, if any, the proposal would be approved. If the building
plans are disapproved as provided herein, then an alternate building plaits may be submitted,
which alternate building plans shall be handled in the same manner as the initial building plans.
Each owner shall construct the building on its parcel in accordance with the approved building
plans.
2.4.4. Each building shall be constructed in such a manner as not to adversely
affect the fire rating or structural integrity of any other building in the shopping center.
2.4.5. Each owner shall maintain or cause to be maintained the exterior of the
building, service facilities and drive-through facilities located on such owner's parcels) in a
clean and attractive manner and in a first class condition. All service facilities shall be attractively
screened from view from the common area.
2.5. Grading and Utility flans. Prior to the commencing construction of the initial
improvements on its parcel, the owner of such parcel shall obtain prior written approval from the
consenting owners for the plans for grading, drainage and utilities ("grading and utility plans").
The grading and utility plaits shall be consistent and compatible with the grading, drainage and
utilities in the remainder of the shopping center. The grading and utility plans shall be submitted
to and reviewed by the consenting owners in the same manner as provided for building plans.
Each owner shall construct the grading and utility improvements on its parcel in a good and
workmanlike manner, in accordance with the approved grading and utility plans and all
governmental regulations.
DECLARATION OF COVENANTS, EASEMENT:), AND
RESTRICTIONS FOR MCLINDER SUBDIVISION NO.2
Page 7 ot'27
2.6. Common Area Improvement Plans. .Prior to the commencing construction of the
initial common area improvements on its parcel, the owner of such parcel shall obtain prior
written approval from the consenting owners for the plans for all common area improvements on
such parcel ("common area improvement. plans"). The common area improvement plans shall
conform to the site plan and be consistent and compatible with the common area improvements
in the remainder of the .stropping center unless otherwise approved by the consenting owners.
The common area improvement plans shall include the location, dimensions and specifications
for the common area improvements. The common area improvement plaits shall be submitted
to and reviewed by the consenting owners in the sante manner as provided for building plans.
Each owner shall construct the common area improvements on its parcel in a good and
workmanlike manner, in compliance with the approved common area improvement plans and all
governmental regulations.
2.7, Common Area. The common area is hereby reserved for the nonexclusive use of the
owners and occupants of the shopping center. The common area may be used for common area
improvements, and vehicular driving, parking, pedestrian traffic, sidewalks, kiosks, seating,
walkways, bicycle racks, landscaping, and utilities, and for no other purpose unless otherwise
specifically provided in this declaration or approved in writing by the consenting owners. The
common area may, from time to time, also be used by the owners and permittees of the adjacent
parcel to the extent expressly permitted or provided in this declaration, the shared maintenance
agreement, and the easement.
2.8. Common Area Obstructions. Unless approved in writing by the consenting owners,
no buildings or structure shall be placed or constructed in the common area except; (i) common
area improvements; (ii) paving, bumper guards, curbs, cart corrals, landscape planters, lighting
standards, utility pads and equipment; (iii) sidewalks; (iv) to the extent that they are located to
the rear or sides of buildings and do not impede access or circulation, .service facilities; and (v) to
the extent that they do not impede access or circulation, drive-through facilities and outdoor
seating areas. No barriers or obstructions shall be placed or constructed within the common area
which prohibit or discourage the free and uninternipted flow of vehicular or pedestrian traffic or
the parking of vehicles in those areas improved and designated for such use, except as specifically
provided herein.
2.9. Changes to Common Area. Ager initial construction of the common area
improvements, no changes, modifications, alterations or relocations shall be made to the common
area or common area improvements from that shown on the site plan and approved common area
improvement plans, without the prior written consent of the consenting owners, provided,
however the foregoing shall not apply to any parcel then owned by the declarant.
2.10. Unused Building Area. The common area shall be kept and maintained as provided
for in this declaration. All portions of any building area which are not used for buildings shall
be (i) developed by the owner thereof, at its sole cost and expense, at the same time as the building
on such parcel is constructed; and (ii) maintained as improved common area.
2.11. Easement. Except as specifically provided in this declaration, the easement shall
not be blocked, closed, altered, changed or removed, shall at times .remain in the location shown
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RESTRICTIONS FOR MCLINDER SUBDIVISION NO.2
Page 8 of 27
on the site plan, and shall be maintained in a smooth and level grade transition to allow the use of
the easement for pedestrian and vehicular ingress and egress to and from the shopping center and
adjacent parcel.
2.12. Construction Requirements.
2.12.1. All work performed in the construction, maintenance, repair, replacement,
alteration or expansion of any building, common area improvement or other improvements
located on any parcel shall be effected as expeditiously as possible and in such a manner as not to
unreasonably interfere, obstruct or delay: (i) access to or from the shopping center, or any part
thereof, to or from any public right-of-way; (ii) access to or from the easement; (iii) customer
vehicular parking in that portion of the improved common area located in front of any building
which is open for business to the public; or (iv) the receiving of merchandise by any business in
the shopping center, including without limitation, access to .service facilities. Staging for
construction, replacement, alteration or expansion of any building, sign, common area or other
improvements located in the shopping center including, without limitation. the location of any
temporary buildings or construction sheds, the storage of building; materials, and the parking of
construction vehicles and equipment shall be limited to that portion of the shopping center
approved in writing; by the consenting owners. Unless otherwise specifically stated herein, the
party contracting for the performance of such work ("contracting party") shall, at its sole cost and
expense, promptly repair and restore to its prior condition all buildings and common area
improvements damaged or destroyed in the performance of such work.
2.12.2. The contracting party shall not permit any liens to stand against any parcel
for any work done or materials furnished in connection with the performance of the work described
in Section 2; provided, however, that the contracting parte may contest the validity of any such
lien, but: (i) upon final determination of the validity thereof, the contracting party shall cause the
lien to be satisfied and released of record; and (ii) itten notice from the
owner of any parcel encumbered by any such lien or claire of lien, cause any such outstanding; lien
or claim of lien to be released or record or transferred to bond in accordance with applicable law,
failing which the owner of said parcel shall have the right, at the contracting party's expense, to
transfer said lien to bond, The contracting parte shall indemnify, defend and hold harmless the
owners and occupants of the shopping center from any and all claims arising out of or in any way
connected with the performance of such work, unless caused by the negligent act or willful
misconduct of the indemnified owner.
2.1.2.3. Incidental encroachments upon the common area may occur as a result of
the use of ladders, scaffolds, store from barricades and similar facilities in connection with the
construction, maintenance, repair, replacement, alteration or expansion of buildings and common
area improvements, all of which are permitted hereunder so long as all activities requiring; the use
of such facilities are expeditiously pursued to completion and are performed in such a manner as
to minimize any interference with use of the improved common area or with the normal operation
of any business in the shopping center.
2.13. Casualty and Condemnation. In the event all or any portion of any building or
common area improvements are: (i) damaged or destroyed by fire or other casualty; or (ii) taken.
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RESTRICTIONS FOR MCIANUER SUBDIVISION NO. Z
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or damaged as a result of the exercise of power of erninent domain or any transfer in lieu thereof,
the owner of the parcel on which such building or common area improvements are located shall
promptly: (a) restore or cause to be restored the remaining portion of such building, or in lieu
thereof, shall remove or cause to be removed the damaged portion of such building together with
all rubble and debris related thereto, (b) restore the common area improvements to a condition
similar to that of the remainder of the shopping center; and (c) commence such restoration work
(i.e., apply for permits and approvals) within sixty (60) days of such casualty and diligently pursue
such work to completion. All areas on which buildings are not reconstructed following a casualty
or condemnation shall be graded or caused to be graded by the owner thereof to the level of
adjoining; property and in such a manner as not to adversely affect the drainage of the shopping
center or any portion thereof, shall be covered by either grass, a dust cap of rolled, crushed rock
no greater than 112- inch minus in diameter, or a ane -inch minimum asphalt dust cap and shall be
kept watered, if grass, weed free and clean at such owner's sole cost and expense until buildings
are reconstructed thereon.
SECTION 3 - EASEMENTS
3.1. Ingress and Egress. Each owner, as grantor(s), herebygr ants to the other owners
and adjacent parcel owner(s), as grantee(s), for the reciprocal benefit of the parcel and adjacent
parcel, and for the use of the permittees of each owner and adjacent parcel owner(s), a
nonexclusive easement for ingress and egress by vehicular and pedestrian traffic upon, over and
across the common area on the grantor's parcel(s), except for those areas devoted to service
facilities or drive-through facilities.
3.2. Easement. Each owner hereby acknowledges and consents to the existence of the
easement. Each owner hereby acknowledges and consents to the terms of the easement and the
responsibility of the maintenance director to maintain the easement in accordance with the
terms of the shared maintenance agreement and easement.
3.3. Parking. Each owner, as grantor, hereby grants to the other owners, as grantees, for
the reciprocal benefit of each parcel and for the use of the permittees of each owner, a
nonexclusive easement for vehicle parking upon, over and across the common area located on
the grantor's parcels). Notwithstanding the foregoing, each owner shall comply with the parking,
requirements set forth in Section 4.1 4.2 and 4.3 below.
3.4. Utility Lines and Limited Cross -Drainage.
3.4.1. Each owner, as grantor(s), hereby grants to the other owners, as grantees,
for the reciprocal benefit of each parcel, a nonexclusive easement wider, through and across the
(i) common area of each owner's parcel(s), for the; installation, operation, maintenance, repair
and replacement of utility lines. Such utility lines shall be installed and maintained below the
ground level or surface of each easements except for ground mounted electrical transformers and
such other facilities as are required to be above ground by the utility providing such service
(including temporary service required during; the construction, maintenance, repair, replacement,
alteration or expansion of any buildings or improvements located in the shopping center. The
installation, operation, maintenance, repair and replacement of such utility line within the
DECLARATION OF COVENANTS, EASEMENTS, AND
RESTRICTIONS FOR MCLtNDER SUBDIVISION NO. 2
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easement shall not unreasonably interfere with the use of the improved common area, the
normal operation of any business in the shopping center. Any damage to any parcel caused by
the operation, maintenance, repair or replacement of a utility line shall be repaired and restored
to the original specifications by the owner performing such work. The owner installing any
utility line shall provide as -built plans for such utility line to the owner(s) of all parcel(s) upon
which such utility line is located, within thtrty 1303 dans after the date of completion of
construction of any such utility line.
3.4.2. At anytime and from time to time the owner of a parcel shall have the
right to relocate on its parcel any utility line then located on its parcel, provided that any such
relocation: (i) shall be performed only after sixty (60) days prior written notice of the owner's
proposed relocation shall have been given to the consenting owners, and the owner of the parcel
served by the utility line; (ii) shall not unreasonably interfere with or diminish utility service to
the parcels served by the utility= line; (iii) shall not reduce or unreasonably impair the usefulness
or function of the utility line; (iv) shall be performed without cost or expense to the owner or
occupant of any other parcel; (v) shalt provide that the common area and related improvements
to be restored to its prior condition; and (vi) shall not be performed during holiday periods,
weekends or critical sales periods for other occupants of the shopping center. The owner
performing such relocation shall provide as -built plans -for such relocated utility lines to
consenting owners and the owners of the parcels served by such utility lines within thirty (30)
days after the date of completion of any such relocation.
3.4.3. Each owner hereby ,grants to the other owners, for the benefit of each
parcel, as grantees, an easement for cross -drainage only to over such area of an owner's parcel
as is necessary for the drainage of the water from drive aisles located within the common area.
3.4.4. Each owner agrees to grant such additional easements as are reasonably
required by any public or private utility for the purpose of providing utility services to all or any
portion of the shopping center.
3.5. Building_ Encroachments. Each owner, as grantor, hereby grants to the other
owners, for the benefit of each parcel, as grantees, an easement for any portion of a building
which may inadvertently encroach into or over the adjoining parcel(s), provided the easement for
footings, piers, piles, grade beams and building encroachments does not exceed two (2) feet, and
the easement for canopies, eaves and roof overhangs does not exceed four (4) feet. The
easements granted in this Section 3.5 shall survive this declaration and shall last so long as the
encroaching building is standing following its initial construction or following its reconstruction
where such building is substantially restored to its prior condition following a casualty or
condemnation, provided such encroachment does not compromise the structural integrity of any
adjacent building.
3.6. Fire and Emergency Access. Each owner, as grantor(s), hereby grants to the other
owners, for the reciprocal benefit of each parcel belonging to the other owners, as grantees, a
nonexclusive easement for fire protection and emergency access on and through the common
area and drive aisles located on the grantor's parcel as may be required by governmental
regulations.
DECLARATION OF COVENANTS, EASEMEN'T'S, AND
RESTRICTIONS FOR MCI.INDER SUBDIVISION NO. 2
Page I t cif 27
3.7. Self -Help. Each owner, as grantor, hereby grants to the other owners for the
reciprocal benefit of each parcel belonging to the other owners, as grantee, an easement to enter
the grantor's parcel to perform such work on the granting owner's parcel as is necessary to cure
any default wider this declaration, and to perform any obligations or exercise any other rights
the grantee owner has under this declaration.
3.8. Prohibition Against Granting Easements. No owner shall grant an easement or
easements for the benefit of any other person or property which is not located within the
shopping center without the prior written consent of the owners of the parcels upon which such
easement shall be located; provided, however, that the foregoing shall not prohibit: (a) declarant
from granting easements for ingress, egress, and utilities over and across any parcel then owned
by declarant; or (b) declarant from granting easements from ingress, egress, utilities or parking
over and across any parcel then owned by declarant for the benefit of the adjacent parcel.
SECTION 4 - OPERATION OF COMMON AREA
4.1. Parking. There shall be no charge for parking in the common area.
4.2. Employee and Service Vehicle Parkin. Each owner shall use commercially
reasonable effbrts to cause its permittees to park on its parcel: (i) all employees of the
occupant(v) of such parcel; and (ii) all trucks, delivery vehicles, service vehicles and contractors
("service vehicles") which provide deliveries or services to the occupant of such parcel.
Notwithstanding the foregoing, in no event shall the owner of any parcel permit or allow service
vehicles to park on its parcel except: (a) when such service vehicles are actively delivering
goods or materials to the occupant of such parcel, or (b) to the extent access and circulation are
not impeded, such service vehicles are parked in the rear of the building located on such parcel.
4.3. Parking Designations— Short Tenn Use. The owner of a parcel may from time to
time designate certain parking spaces on its parcel (not to exceed twenty-five percent (25%) of
the parking required for such parcel) for short term or time restricted use, and in such case, the
owner of such parcel shall have the right to erect signage designating such short term or time
restricted spaces.
4.4. Sims.
4.4.1. Subject to governmental regulations, two project signs may be erected at
the shopping center. The cost of constructing, installing, maintaining, repairing and replacing the
project signs' structure shall be paid by the owners of all parcels entitled to display a sign panel
on such project sign in the proportion that the total square footage of each owner's sign panel
bears to the total square footage of all sign panels entitled to be displayed on the project sign.
Each occupant displaying a .sign panel or image on the project signs shall supply and maintain
its own sign panel or image, at its oNvn cost. if the project signs are of such a nature that they do
not display sign panels, the cost of constructing, installing, maintaining, repairing, and replacing
the project signs shall be shared equally by the owners. The maintenance, repair, and
DECLARATION OF COVENANTS, EASEMENTS, AND
RESTRICTIONS FOR MCLINDER SUBDIVISION NO. 2
Page 12 oF27
replacement of the project signs shall be performed as provided in the shared maintenance
agreement.
4.4.2. Subject to governmental regulations and provided that the project signs
permitted by governmental regulations are not adversely affected thereby, the owners of each
parcel may erect on its parcel one parcel sign The cost of constructing, installing, maintaining,
repairing and replacing each parcel sign shall be paid by the owner or occupant of the parcel on
which such parcel sign shall be paid by the owner or occupant of the parcel on which such
parcel sign is located.
4.4.3. There shall be no other signs, except directional signs and signs on
buildings, in the shopping center without the prior written approval of the consenting owners.
All exterior building signs in the shopping center shall be subject to the prior written approval of
the consenting owners.
4.5. Use of Sidewalks. Subject to governmental regulations, the occupant of a
building may use the sidewalks located directly in front of its building ("sidewalk area") for the
sales of merchandise or service of food or beverages, provided that: (i) no more than fifty percent
(50%) of the sidewalk area adjacent to and in front of such building is used for such activities;
(ii) use of the sidewalk area for such activities does not materially or adversely impair pedestrian
circulation or access to or around the building or violate ADA requirements; (iii) use of the
sidewalk area occurs for short periods and on an occasional basis, unless otherwise approved by
the consenting owners; and (iv) the occupant using; such sidewalk area: (a) provides daily
cleaning and washing of the sidewalk area and furnishings to maintain the same in a neat and
clean condition free of build up from food spills, dusts, dirt and other substances and free of any
debris from such use and operation; (b) provides daily emptying of all trash containers; and (c)
complies with all rules and regulations imposed by the consenting owners from time to time
related to use of the sidewalk areas ("sidewalk maintenance standards").
4.6. Outdoor Seating Areas. Subject to governmental regulations, the occupant of a
parcel may provide outdoor seating areas for use in connection with a limited food service or
restaurant use operated on such parcel provided such occupant: (a) obtains the prior written
approval of the consenting owners for the location, dimensions and any screening for the
outdoor seating areas, but in no event shall the location and use of the outdoor seating areas
adversely affect vehicular or pedestrian circulation or parking in the shopping center, or be
created in or displace any parking spaces in the shopping center•, (b) maintains the outdoor
seating areas in a first-class clean and orderly condition, at such owner or occupant's sole
expense; and (c) complies with all rules and regulations imposed by the consenting owners from
time to time related to use and operation of outdoor seating areas. The owner or occupant of the
parcel on which the outdoor settling areas are located shall at tithes, and at its sole cost,
maintain, repair and replace the common area improvements located within the outdoor seating
areas to the Sidewalk Maintenance Standards.
4.7. Drive-Through Facilities. No drive-through facilities shall be located within the
shopping center unless such drive-through facilities are approved in writing by the consenting
owners. The drive-through facilities shown on the site plan are deemed to be approved. The
DECLARATION OF COVENANTS, EASEMENTS, AND
RESTRICTIONS FOR MCIANDER SUBDIVISION NO.2
Page 13 oF27
consenting owners may disapprove any proposed, constructed, used or operated drive-through
facility which: (i) permits motor vehicles in line at such drive-through facility to stop or stand on
another parcel, the common area, or easement, or (ii) interferes with the normal pattern and
flow of pedestrian or vehicular traffic on and across the other parcel(s), the easement, or the
common area.
SECTION 5 - RESTRICTIONS ON USE
5.1. General. Each parcel in the shopping center shall be used for (i) lawful retail,
service retail, restaurant, professional office purposes, and (ii) uses which are permitted by
governmental regulations for a neighborhood business zone, provided, that in no event shall any
parcel, or any portion thereof, be used or operated in violation of governmental regulations or
any use prohibited in this Section S.
5.2. Obnoxious Use Restrictions. During the term of this declaration, no portion of
the shopping center may at any time be used for any of the following purposes, unless otherwise
approved by the consenting owners in writing:
5.2.1. An adult type bookstore or other establishment selling, renting, displaying
or exhibiting pornographic or obscene materials (including without limitation: magazines, books,
movies, videos, photographs or so called "sexual toys") or providing adult type entertainment or
activities (including, without limitation, any arcades or displays of a variety involving, exhibiting
or depicting sexual themes, nudity or lewd acts);
5.2.2. A massage parlor; provided, however, that a day spa, medi-spa, health
club or professional office which provides therapeutic massage services shall be permitted;
5.2.3. A tattoo parlor;
5.2.4. Drug paraphernalia sales;
5.2.5. A mortuary, crematorium or funeral home;
5.2.5. Auto supply or repair;
5.2.7. A mobile home or trailer court, labor camp, junkyard or stockyard;
5.2.8. Aland fill, garbage dump or for the dumping, disposing, incineration or
reduction of garbage;
5.2.9. A telephone call center;
5.2.10. A dry cleaning plant, central laundry or laundromat, provided, however,
that the following; shall be permitted: (A) a dry cleaning drop-off business in which laundry and
dry cleaning services are performed off-site; and (11) a dry cleaning business that performs
laundry and dry cleaning services on-site using non -percolating chemicals which are not
DECLARATION OF COVENANTS, EASEMENTS, AND
RESTRICTIONS FOR MCLINDER SUBDIVISION NO, 2
Paige 14 of'27
considered to be hazardous materials under state, federal or local environmental laws and
regulations;
5.2.11. A gambling establishment, bingo parlor or betting parlor (except the sale
of lottery tickets by a government sponsored lottery shall be permitted);
5,2.12. A facility for raising or boarding of animals, provided that a veterinary
clinic shall be permitted;
5.2.13. Assembling, manufacturing, industrial, distilling, refining or smelting
facility;
5.2.14. A training or educational facility (including without limitation, a school,
college, reading room or other facility catering primarily to students and trainees rather than
customers), provided that a tutoring or educational learning facility shall be permitted; and
5.2.15. An establishment for sale of automobiles, trucks, mobile homes,
recreational motor vehicles.
SECTION 6 - COMMON AREA MAINTENANCE
6.1. Maintenance. From and after the date this declaration: is recorded, except to the
extent included in the shared maintenance agreement, each owner in the shopping center shall
maintain the common area and common area improvements on its parcel in good order and
condition and state of repair in accordance with standards of a first class shopping center in
compliance with the requirements of this declaration and governmental regulations, including
but not limited to the following, (collectively, "maintenance standards"):
6.1.1. Maintaining, repairing, resurfacing, re -stripping and replacing, when
necessary, all paved surfaces and sidewalks, in a level, smooth and evenly covered condition
with the type of surfacing material originally installed or such substitute as shall in all respects be
equal or superior in quality, use and durability, including any paved areas or sidewalks located
within the public right-of-way adjacent to such parcel (to the extent required by governmental
regulations);
6.1.2. Removing all papers, debris, filth and refuse and thoroughly sweeping the
area to the extent reasonably necessary to keep the area in a clean and orderly condition;
6.1.3. Maintaining and repairing, when necessary all signs, traffic directional
signs, markers and lines;
6.1.4. Maintaining and watering all landscaped areas, including any landscaped
areas located within the public right-of-way adjacent to such parcel (to the extent required by
governmental regulations), maintaining, repairing, and replacing, when necessary, automatic
landscape sprinkler systems and water lines, and replacing shrubs and other landscaping as is
necessary;
DECLARATION OF COVENANTS, EASEMENTS, AND
RESTRICTIONS FOR MCLINDER SUBDIVISION NO.2
Page 15 of 27
6.1.5. Operating, maintaining, repairing and replacing, when necessary, artificial
lighting facilities and related components;
6.1,6. Providing lighting and electricity for artificial lighting in the parking areas
and providing of the lighting on the common area of such owner's parcel in accordance with
govermnent regulation;
6.1.7. Maintaining, repairing, and replacing, when necessary, all common area
walls (including, without limitation, all fences, screen walls, retaining walls or barricades);
6.1.8. Maintaining, repairing; and replacing, when necessary, all separate utility
lines serving such parcel; and
6.1.9. Maintaining, repairing and replacing; the parcel sign for such parcel.
6.2. _Taxes and Assessments. Each owner shall pay all taxes, assessments, or charges
of any type levied or made by an governmental body or agency with respect to its parcel.
SECTION 7 — INSURANCE, MUTUAL INDEMNITY AND WAIVER OF CLAIMS
7.1. Liability Insurance. Each party shall at all times maintain (or cause to be
maintained) commercial general liability insurance policy ("CGL Policy") (or equivalent ISO form
in use from time to time in Idaho) covering any claims arising from (i) iniury to or death of any
person or damage to any property occurring; on its parcel, (ii) iniury or death of any person or
damage to any property occurring on its parcel arising out of the ownership, operation,
maintenance, use or entrustment to others of any aircraft, automobile, or water craft, (iii) bodily
injury or property damage arising; out of actual, alleged, or threatened discharge, dispersal,
seepage, migration, release, escape, or emission of pollutants, fungi, and bacteria, and (iv) the use
of the common area by such pari),. 'Che CGL Policy shall have a combined single limit of no less
than $2,000,0 per occurrence, with $4,000,000 annual aggregate limit, shall be primary with
regard to such party's parcel (not contributory any other party's CGL Policy), include broad form
contractual coverage, an endorsement to cover contractual liability arising out of this declaration,
and shall not be subject to cancellation except after at least thirty (30) days' prior written notice to
all insured parties. Each parte shall name the maintenance director under the shared maintenance
agreement as an additional insured on its CGL Policy and shall provide the maintenance director
with a copy of the CGL Policy along with any endorsements in order to show compliance with this
Section. Unless otherwise agreed in writing, a certificate of insurance will not be accepted as
evidence of compliance with this Section. Upon written requests from any party(s), each party
shall (i) name the other party and its lienholder as additional insured(s), as their respective interests
may appear, and (ii) provide the requesting party with evidence that the CGL Policy is in full force
and effect. In no event shall the limits of any CGL maintained by any party pursuant to this
declaration be considered as limiting such party's liability under this declaration.
7.2. Property Insurance. Each owner of a stropping center parcel shall at all times
maintain (or cause to be maintained) property insurance insuring the building(.r) and common area
DECLARATION OF COVENANTS, EASEMENTS, AND
RESTRICTIONS FOR MCLINDER SUBDIVISION NO. 2
Page 16 of 27
improvements located on its parcel against loss or damage resulting from perils covered by the
causes of loss — special form ("Property Insurance")(or the equivalent ISO form in use from time
to time in Idaho). Such Property Insurance shall be written for the full replacement value. Each
owner shalt, upon request, provide the consenting owners with evidence that the Property
Insurance is in full force and effect. Unless otherwise agreed in writing, a certificate of insurance
is not satisfactory evidence that any insurance policy is in full force and effect.
7.3. General Requirements. All insurance required to be maintained by a party shall:
(a) be on an occurrence basis; (b) provide primary coverage; (c) require thirty (30) days prior
written notice to the named insured or loss payees of any cancelation or reduction in coverage; (d)
written by insurance companies licensed to do business in the State of Idaho which insurer is rated
A, Class VIII or better in Best's Key Rating Guide (or equivalent rating in a similar or successor
rating service publication in the event Best's ceases to publish insurance company ratings.; (e)
contain a waiver by the insurer of all rights of subrogation against each party and their respective
officers, employees, associates and representatives; and (f) provide that such insurance cannot be
cancelled or suspended by a reason of anything contained in this declaration.
7.4. Indemnity. Each party ("indemnitor") shall indemnify defend, and save the other
parties and the maintenance director under the shared maintenance agreement (`°Indernnitee(s)")
harmless from any and all claims arising from (i) injury to or death of any person or damage to
any property occurring on the indemnitor's parcel or resulting from the use of the common area,
and (iii) any negligence or tortuous action of the indemnitor.
7.5. Release. Notwithstanding anything in this declaration to the contrary, each party
("injured party") hereby waives any claim it may now or hereafter have (and to the extent
permitted by applicable law, any claim any of its insurers may now or hereafter have based on
subrogation or an assignment from insured) against the other party(.$), its directors, officers,
employees and agents ("Released Party") for any loss of or darnage to the injured party's parcel
or property to the extent covered by insurance (or which would have been covered by the insured
required hereunder), EVEN IF THE LOSS OR DAMAGE IS CAUSED BY THE NEGLIGENCE
OF ANY RELEASED PARTY, OR IF ANY RELEASED PARTY IS STRICTLY LIABLE FOR
LOSS OR DAMAGE.
SECTION 8 — REMEDIES AND ENFORCEMENT.
8.I. Default. A park, shalt be in material breach of this declaration if such party (the
"defaulting party") fails to (i) observe, abide by or perform any of the obligations, covenants, or
obligations under this declaration, and (ii) cure such breach within (30) days after written notice
specifying the nature of such breach is given by another party (the "non -defaulting party") to the
defaulting party, provided that if the nature of such breach requires more than 30 days to cure and
the defaulting party commences action to cure within the 30 -day period, the cure period shall be
extended so long as the defaulting party is diligently pursuing; and using good faith and best efforts
to cure such breach.
8.2. Right to Cure. Ifa defaultingparty fails to cure its default within the time provided
in Section 8.1 above, then any other party ("curing party") shall have the right, but not the
obligation, to cure such default by the payment of money or performance of such other account
DECLARATION OF COVENANTS, EASEMENTS, AND
RESTRICTIONS FOR MCLINDER SUBDIVISION NO.2
page t7 of 27
for the account of and at the expense of the defaultingparty, provided that in the event such default
constitutes an emergency condition involving immediate and imminent threat or substantial injury
or harm to person or property, the curing party, acting in good faith, shall have the right to cure
such default upon such advance notice as is reasonably possible under the circumstances.
8.3. Lien Rights. Any costs and expenses incurred by the curing party pursuant to
Section 8.2 above shall constitute a lien against the defaulting party's parcel. The lien shat l attach
only upon recordation of a claim of lien ("Claim of Lien") filed in the records of Ada County,
Idaho by the curing party. The Claim of Lien shall state (i) the name and address of the defaulting
party and the curing party; (ii) a statement of the basis for such Claim of Lien or the work
performed which gives rise to the Claim of Lien; (iii) the legal description of the parcel on which
the Claim of Lien is made; (iv) a statement itemizing the total amount due, including default
interest; and (v) a statement that the Claim of Lien is made pursuant to this declaration. The
Claim of Lien shall be attached as of the date of recordation and may be enforced by any judicial
or non judicial proceedings available at law. Upon defaulting party paying the amounts owed, the
curing por(y shall record an appropriate release for such Assessment Lien.
8.4. Assessments and Fines. The maintenance director described within the shared
maintenance agreement has the power to levy assessments and tines on any owner or any parcel
and to farce payment of such assessments and fines, all in accordance with the provisions of this
declaration and the .shared maintenance agreement.
8.5. Injunctive Relief. In the event of any violation or threatened violation by any
person of any of the restrictions, covenants, obligations, or easements contained in this
declaration, any or all of the owners of the property included within the shopping center shall
have the right to enjoin such violation or threatened violation in a court of competent jurisdiction.
The right of injunction shall be in addition to all other remedies set forth in this declaration or
provided by law.
8.6. Other Remedies. Any party may bring an action to enforce the terms, convents,
restrictions or conditions of this declaration and shall be entitled to remedies at law or equity,
including injunctive relief, payment of any amounts due and specific performance. Tile right of
injunctions shall be in addition to all other remedies set forth in this declaration or provided by
law. The remedies specified herein shall be cumulative and in addition to all other remedies
permitted at law or in equity.
8.7. No Termination for Breach. Notwithstanding the foregoing to the contrary, no
breach hereunder shall entitle any party to cancel, rescind, or otherwise terminate this declaration.
No breach hereunder shall defeat or render invalid the lien of any mortgage or deed of trust upon
any parcel made in good faith for value, but the easements, covenants, conditions and restrictions
hereof shall be binding upon and effective against owner of such parcel covered hereby whose
title thereto is acquired by foreclosure, trustee's sale, or otherwise.
8.8. Waiver. The failure of a person to insist upon strict performance of any of the
obligations or restrictions contained within this declaration shall not be deemed a waiver of any
rights or remedies that said person may have, and shall not be deemed a waiver of any subsequent
DECLARATION OF COVENANTS, EASEMENTS, AND
RESTRICTIONS FOR MCLINDER SUBDIVISION NO.2
Page I8 of 27
breach or default in the performance of any of the obligations or restrictions contained herein by
the same or any other person.
8,9. Attorney's Fees. In the event any party brings an action or otherwise incurs costs
to enforce any terms, convents, restrictions, conditions, or provisions of this declaration, the non -
prevailing party in such action shall pay the reasonable attorney's fees (including attorney's fees
on any appeal or in bankruptcy) incurred by the prevailing party, whether or not such controversy
or claim is litigated or prosecuted to judgment.
SECTION 9 - GENERAL PROVISIONS.
9.1. Successors and Assigns. This declaration and the restrictions covenants,
obligations, and easements created hereby shall inure to the benefit of and be binding upon the
owners, their heirs, personal representatives, successors and assigns, and upon any person
acquiring, a parcel, or any portion thereof, or any interest therein, whether by operation of law or
otherwise; provided, however, that if any owner sells all or any portion of its interest in any parcel,
such owner shalt thereupon be released and discharged from any and all obligations as owner of
parcel in connection with the property sold by it arising under this declaration after the sale and
conveyance of title but shall remain liable for all obligations arising under this declaration prior
to the sale and conveyance of title. The new owner of any such parcel or any portion thereof
(including, without limitation, any owner who acquires its interest by foreclosure, trustee's sale or
otherwise) shall be liable for all obligations arising under this declaration with respect to such
parcel portion thereof after the date of sale and conveyance of title.
9.2, Duration. Except as otherwise provided within this declaration, the covenants,
conditions, restrictions, and equitable servitudes of this declaration
shall
run i h the land such
Duntil
ecember 31, 2080, unless amended as herein provided. After
covenants, conditions, and restrictions shall be automatically extended for successive periods of
ten (10) years each, unless extinguished by a written instrument executed by at least three-fourths
(314) of consenting owners and such written instrument is recorded with the Ada County Recorder.
93. Notwithstanding the termination of the declaration:
9.3.1. The easements described within this declaration shall survive the expiration
of the term of this declaration and be perpetual and run with the land forever;
9.3.2. Easements for existing pylon signs, utilities, and building encroachments as
provided for in Article 3 in use at the time of the expiration of this declaration shall continue for
the remainder of the life or use'of such signs, utility improvements and building encroachments
and the replacements thereof. Each consenting owner shall be entitled to relocate, at its own
expense, easements for utilities on its parcel after terrnination of this declaration; and
9.3.3. Building encroachments in use at the time of expiration of this declaration
shall continue for the remainder of the life or use of such building encroachments and replacements
thereof.
9.4. Modification and I'er urination.
DECLARATION OF COVENANTS, EASEMENTS, AND
RESTRICTIONS FOR MCLINDER suBDIVISION NO.2
{gage 19 of 27
9.4.1. Subject to the terns and conditions set forth in this Section 9.4, this
declaration may not be modified in any respect whatsoever, in whole or in part, except by the
written approval of the consenting owners and then only by written instrument duly executed and
acknowledged by a majority of the consenting owners and recorded in the office of the recorder
of the county in which the stropping center is located.
9.4.2. After the declarant has deeded any parcel to any person other than an
affiliate, this declaration may not be terminated except with the written consent of the shopping
center owners and their respective Lienholders. Prior to the declarant deeding any parcel to any
person other than an affiliate, the declarant may terminate the declaration. No modification or
termination of this declaration shall affect the rights of any existing Lienholder unless the
Lienholder consents in writing to the modification or termination.
9.5. Supplemental Declaration. So long as declarant owns any parcel in the shopping
center (or any portion thereof), or the adjacent parcel (or any portion thereof), declarant shall
have the unilateral right, from time to time, to execute and record a supplemental declaration,
subject to the following terms and conditions:
9.5.1. Such supplemental declaration (i) affects only parcels then owned by
declarant ("declarant parcels)"), and (ii) provides for only the following matters: (a) designates
additional drives on the declarant parcel(s); (b) imposes additional restrictions on the declarant
parcel(s); (c) modifies site plan for the declarantparcel(s); (d) evidences the legal description and
site plan for any parcel(s) affected by a parcel adjustment; or (e) makes technical or minor
corrections to this declaration or any previously recorded supplemental declaration.
9.5.2. Such supplemental declaration may also annex all or any portion of the
adjacent parcel into the shopping Center ("annexed parcel"), provided that (i) effective as of the
date of recordation such .supplemental declaration, the annexed parcel shall automatically be
subject to and bound by alll terms, conditions, restrictions and obligations set forth in this
declaration; (ii) each such annexed parcel shall be deemed to be an individual "parcel" in the
shopping center, and the record holder of fee simple title of such annexed parcel an "owner" for
all purposes of this declaration; (iii) the site plan attached to such supplemental declaration shall
be deemed to be the approved site plan for such annexed parcel; and (iv) the legal description of
such annexed parcel shall be attached to such supplemental declaration.
9.5.3. Any supplemental declaration shall be effective upon recordation in the
records of Ada County, Idaho.
9.6. Not a Public Dedication. Nothing herein contained shall be deemed or implied to
be a gift, grant or dedication of any portion of the shopping center or the adjacent parcel to or for
the general public or for any public use or purpose whatsoever. Except as specifically provided in
this declaration, any supplemental declaration, or the shared maintenance agreement, no right,
privileges or immunities of any owner shall inure to the benefit of any third -party, nor shall any
third -party be deemed or considered to be a beneficiary of any provisions herein.
9.7. Notices.
DECLARATION OF COVENANTS, EASEMENTS, AND
RESTRICTIONS FOR MCLINDER SUBDIVISION NO. 2
Page 20 of 27
9.7.1. All notices permitted or required to be given: pursuant to tlus declaration
shall be in writing and shall be given by personal delivery, by United States mail or by United
States express mail or other established express delivery service (such as Federal Express), postage
or delivery charge prepaid, return receipt requested, addressed -to the person and address
designated below or, in the absence of such designation, to the owner of such parcel at the address
shown below and address shown on the then current real property tax rolls of the county in which
the shopping center is located. All notices to declarant shall be sentto the person and address set
forth below:
Declarant: L,5 Development,
4202 N. Marcliffe
Boise, Idaho 83744
The person and address to which notices are to be given may be changed at any time by any owner
upon written notice to the other owners. All notices given pursuant to this declaration shall be
deemed given upon receipt.
9.7.2. For the purpose of this declaration, the term `receipt" shall mean the earlier
of any of the following: (i) the date of delivery of the notice or other document to the address
specified above; (ii) the date of actual receipt of the notice or otlier document by the person;
(iii) the date of deposit with the overnight courier; (iv) two (2) business days after deposit in the
United States Mail; or (v) in the case of refusal to accept delivery or` inability to deliver the notice
or other document; the earlier of: (a) the date of the attempted delivery or refusal to accept delivery;
(b) the date of the postmark on the return receipt; or (c) the date of receipt of notice of refusal or
notice of non-delivery by the sending party.
9.8. Method ofApproval. Approval or consent of the. consenting owners (unless
otherwise stated herein) shall mean the written approval or written consent of a majority of the
consenting owners, which majority must include declarant for so long as declarant remains a
consenting owner.
9.9. Estop De -Certificate. Each owner shall, upon written request (which shall not be
more frequent than three (3) times during any calendar year) of any other owner, issue to a
prospective mortgagee or successor of such other owner or to such other owner, an estoppel
certificate stating to the best of the issuer's knowledge that as of such date:
(i) Whether the owner to whom the request has been directed knows of any
default by the requesting owner under this declaration, and if there are known defaults, specifying
the nature thereof; and
(ii) Whether this declaration has been assigned, modified or amended in any
way by the requested owner (and if it has, then stating the nature thereof); and
DECLARATION OF COVENANTS, EASEMENTS, AND
RESTRICTIONS FOR MCLINDER SUBDIVISION NO.2
Page 21 of 27
(iii) Whether this declaration is in full force and effect.
Such statement shall act as a waiver of any claim by the owner furnishing it to the extent such
claim is based upon facts contrary to those asserted in the statement and to the extent the claim is
asserted against a bona fide encumbrancer or purchaser for value without knowledge of facts to
the contrary of those contained in the statement and who has acted in reasonable reliance upon the
statement; however, such statement shall in no event subject the owner furnishing it to any Iiability
whatsoever, notwithstanding the negligent or otherwise inadvertent failure of such owner to
disclose correct and relevant information.
9.10. Severability. If any term or provision of this declaration or the application of it to
any person or circumstance shall to any extent be invalid or unenforceable, the remainder of this
declaration or the application of such terse or provision to persons or circw-rnstances, other than
those as to which it is invalid or unenforceable, shall not be affect thereby, and each term and
provision of this declaration shall be valid and shall be enforced to the extent permitted by law.
9.11. Acceptance. Each owner and each purchaser of a parcel tinder contract or
agreement of sale and each holder of an option to purchase a parcel, by accepting a deed, contract
of sale or agreement or option, accepts the same subject to all of the covenants and restrictions
and other provisions set forth in this declaration and agrees to be bound by the same.
9.12. Violation of Law. Any violation of any state, municipal, or local law, ordinance, or
regulation pertaining to the ownership, occupation or use of any property within the shopping
center is hereby declared to be a violation of this declaration and subject to any or all of the
enforcement procedures set forth in this declaration and any or all enforcement procedures in law
and equity.
9.13. Not a Partnership. The provisions of this declaration .are not intended to create, nor
shall they be in any way interpreted or construed to create, a joint venture, partnership, or any
other similar relationship between the owners.
9.24. Third Party Beneficiary Rights. This declaration is not intended to create, nor shall
it be in any way interpreted or construed to create, any third party beneficiary rights in any person,
except as to an owner or unless otherwise expressly provided herein.
9.15. Captions and Headings. The captions and headings in this declaration are for
reference only and shall not be deemed to define or limit the scope or intent of any of the terms,
covenants, conditions or agreements contained herein.
9.16. Construction. In construing the provisions of this declaration and whenever the
context so requires, the use of a gender shall include all other genders, the use of the singular shall
include the plural, and the use of the plural shall include the singular.
9.17. Joint and Several Obligations. In the event any owner is composed of more than
one person, the obligations of said owner shall be joint and several.
DECLARATION OF COVENANTS, EASEMENTS, AND
RESTRICTIONS FOR MCLINDER SUBDIVISION NO.2
Page 22 of 27
9.18. Exhibits. The Exhibits attached are incorporated herein and made a part hereof to
the full extent as if each were set forth in its entirety in the body hereof.
9.19. Recon This declaration shall be recorded in the office of the recorder of the
county in which the strapping center is located.
EXECUTED as of the day and year first above written.
DECLARANT:
T'
By
Th
STATE OF IDAHO )
. ss.
County of_ s—A c,,._ )
On this ��ay of ARril, 7ZaL before me, the undersigned, a Notary Public in and for
said State, personally appeared Thomas Bevan, known and identified to me to be a Member of
the limited liability company that executed the instrument or the person who executed the
instrument on behalf of said limited liability company, and acknowledged to me that such
company executed the same.
IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the
day and year in this certificate first above written.
Notary Public or Idaho
Residing at ���s�d�t� , therein
SHAWN C. MAY130t4 My Commission Expires: f f a
NOTARY PUBLIC
STATE OF IDAHO
DECLARATK)N OF COVENANTS, EASEMENTS, AND
RESTRICTIONS FOR MCLINDER SUBDIVISION NO.2
Page 23 of 27
May 27, 2015
McLinder Subdivision No. 2 Legal Description
A portion of the NW 1I4 of Section 36, T. 4 N., R. 1 W., B.M., City of Meridian, Ada County, Idaho,
more particularly described as follows:
COMMENCING at a brass cap marking the northwest comer of said section 36;
Thence South 89°24'32" East, coincident with the north line of said section 36, a distance of 812.05 feet;
Thence South 0° 16'26" West, 25.00 feet to the northwest corner of Cobblefield Crossing Subdivision
No. 2, as shown on file in book 93 of plats at page 11175, Ada County records, to the POINT OF
BEGINNING•,
Thence continuing South 0°1626" 'West, coincident with the west boundary of said Cobblefield
Crossing Subdivision No. 2, a distance of 201.47 feet;
Thence North 89°26'18" West, coincident with the northerly boundary of Mclinder Subdivision No. 1,
as shown on file in book 107 of plats on page 14916, Ada County records, a distance of 588.45 feet,
Thence South 0°33'42" West, coincident with the westerly boundary of Mclinder Subdivision No. 1, a
distance of 441,58 feet.
Thence South 89°59'26" West, 163.10 feet;
Thence North 4405256" West, 28.22 feet to the east right of way line of N. Linder Road;
Thence North 0°14'44" East, coincident with said east right of way line of N. Linder Road, a distance of
374.50 feet;
Thence North 7°22'12" East, coincident with said east right of way line of N. Linder Road, a distance of
96.75 feet;
Thence North Q° 14144" East, coincident with said east right of way line of N. Linder Road, a distance of
104.72 feet;
Thence North 45°24'12" East, 70.44 feet to the south right of way line of W. Mcmillan Road;
Thence South 89°24'32" East, coincident with said south right of way' line of W. Mcmillan Road, a
distance of 712.15 feet to the POINT OF BEGINNING;
The above described parcel contains 5.37 acres, more or less.
DECLARATION OF COVENANTS, EASEMEN`rs, AND
RESTRICTIONS FOR MCLINDI R SUBDIVISION NO, 2
Page 24 of 27
Together with and subject to covenantrestrictions of record.
End Description
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DECLARATION OF COVENANTS, EASEMENTS, AND
RESTRICTIONS FOR MCLINDER SUBDIVISION NO.2
Page 25 of 27
EXHIBU B
McLinder Subdivision No. 1
Legal Description
A portion of the NW1j4 of Section 36, T. 4 N., R. 1 W., B.M., City of Meridian, Ada County, Idaho, more
particularly described as follows:
COMMENCING at an aluminum cap marking the Northwest corner of said Section 36;
Thence South 89"24'32" East, coincident with the North line of said section 36, a distance of 812.05 feet;
Thence South 0"16'26" West, 226.47 feet to the POINT OF BEGINNING;
Thence continuing South 0'16`26" West, 203.14 feet to a point on the West line of Cobblefield Crossing
Subdivision No. 2, as shown on file in Book 93 of Plats on Page 11175, Ada County Records;
Thence South 88`24'32" East, parallel -With said North line of section 36, and coincident with said West
line of Cobblefieid Crossing Subdivision No. 2, a distance of 78.21 feet;
Thence South 11'42'27" West, coincident with said West line of Cobbiefleld Crossing Subdivision No. 2, a
distance of 79.20 feet;
Thence South 26°02'45" West, 198.42 feet to the Northeast corner of Arch Rock terrace Subdivision as
shown on file in Book 105 of Plats on Page 14348, Ada County Records;
Thence North 89'26'18" West, coincident with the North line of said Arch Rock terrace Subdivision,
750.00 feet to the East right of way line of N. Linder Road;
Thence North 0014'42" East, coincident with said East right of way line of N. Linder Road 36.60 feet;
Thence South 44°52'5£+" East, 28.22 feet;
Thence North 89°59'26" East, 163.10 feet;
Thence North 0°33'42" East, 447..58 feet;
Thence South 89"26'18" East, 588.45 feet to the POINT OF BEGINNING;
The above described parcel contains 6.51 acres, more or less,
Together with and subject to covenants, easements and restrictions of record.
DECLARATION OF COVENANTS, EASEMENTS, AND
RESTRICTIONS FOR MCLINDER SUBDIVISION NO. 2
Page 26 (if 27
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DECLARATION OF COVENANTS, EASEMENTS, AND
RESTRICTIONS FOR MCLINDER SUBDIVISION NO.2
Page 27 of 27